Posner Spars With University Lawyer And Threatens To Cut Off Oral Argument Due To “Babbling” And Interruptions

I previously blogged on an oral argument before Judge Richard Posner where I felt he had shown a surprising antagonism toward privacy and a civil liberties lawyer. Given my respect for Posner as a brilliant academic, I was surprised to read of his open dismissal of arguments that later prevailed in the court. Now, Posner is again the news with a heated exchange with a lawyer, Matthew Kairis, who he said was talking over his questions and refusing to direct questions with direct answers. The case is Univ. of Notre Dame v. Kathleen Sebelius. The oral argument tape below presents an interesting example of how lawyers respond to aggressive questioning from the bench in such arguments.

Posner was sitting on an appeal concerning a challenge to the health care law and Kairis was representing the University of Notre Dame. Notre Dame sued the U.S. Department of Health and Human Services over its contraception mandate. The law has an accommodation allowing the university to meet the requirement by contracting with a third-party provider, but that still requires action and approval from the religious institution.

During the 45 minutes, Posner grew increasingly irritated by what he viewed as disrespectful interruptions by Kairis and instructed him not to interrupted the court. He heated told Kairis “You answer my question!”

Posner was skeptical of the university’s argument that the health care law was forcing it into “complicity” with the government by forcing it to fill out a form to transfer responsibility for contraceptive services to a third-party provider. Posner said that the required action was “trivial” and asked Kairis to confirm what the university objected simply to sending a letter to the feds stating something along the lines of “we’re a religious organization, and so we’re just not going to pay.” Kairis clearly did not want to answer the question with a yes or a no and tried to explain. Posner grew increasingly irritated told him to “stop fencing” and warned him to stop: “Look, if you don’t cooperate with me, I’m not going to let you continue your argument.”

Posner then proceeded to publicly lash Kairis, asking “Would you stop babbling?” Posner added “When you’re asked a question … you’re not supposed to interrupt judges and, if they ask questions which can be answered yes or no, you answer yes or no. Don’t you understand that?”

When I work with law students, I often try to get them to give up prepared arguments or notes to better listen to judges. Interrupting judges, even domineering judges, is never a good option. Having said that, judges will sometimes try to force “yes or no” answers to complex questions. It can be a trap where the opinion later records some waiver or concession that was not intended by counsel. Many questions are framed in a way that it is simply not accurate to give a one word answer. It can be very frustrating for a lawyer. Frankly, I tend to have greater sympathy for lawyers in such cases, particularly when faced with highly nuanced positions of their clients. Judges often so little sensitivity toward the litigators while pummeling them from the bench.

What is interesting is the threat of Posner to stop the argument. That is a rather unilateral decision given the participation on the panel by Judge Joel Flaum and Judge David Hamilton.

I have listened to the argument and I do believe that Kairis was mistaken in talking over Posner. I also believe he could have been clearer in his position with the Court. He did appear irritate another member of the panel who sought to clarify with his position and instructed him that the court had a lot of questions. He then talked over that judge. Kairis ran into trouble again by giving his “sense” of his client’s position and again spoke over one of the judges.

However, I do not believe that he was ever “babbling.” He was struggling to make a difficult argument. However, that “babbling” comments came after Kairis continued to read a quote over the judge’s question, leading Posner to state “you must have argued cases before. You are not supposed to interrupt judges . . . Don’t you understand that.” He did not reflect that understanding in this argument and it was a very poor approach. Moreover, Posner asks one question that is appropriately framed as a “yes or no” question when he asked if Kairis’ clients were challenging the law as a whole. Almost reluctantly, Kairis says “no.” Even at the 32 minute mark, Kairis is still speaking over the judges’ questions. He is clearly having a tough time with Posner who is not letting him finish an answer. Posner appears to be trying to box him in but will not give him time to respond on many questions. It is a common complaint among litigators but you have to yield to the interruptions.

At one point, Posner asks (around 35 minutes) whether contraception is a “mortal sin or venial sin”, according to his client. Kairis says that he does not know and Posner says “Well, you should. It is a mortal sin if he person using the contraceptive knows that church forbids it.” Posner then asks why the university does not impose any sanction on students who use contraceptions. Kairis says the school has no interest in such a role, but Posner asks why. Posner notes that Notre Dame’s website contains a category of “what’s new” with news about contraceptive coverage. “No where is there any statement that Notre Dame is opposed to the use of contraceptives . . . I am just curious why Notre Dame [is arguing against this trivial obligation] but is not doing anything to alter people’s behavior.”

One of the other judges raises the most poignant question when he asks Kairis can point to any other case in history where the accommodation itself for religious freedom is itself viewed as the denial of free exercise. Kairis said that he could not think of any other such case. That line of questioning left substantial damage below the water line.

I should note that Posner himself finishes in a polite fashion at the end of the oral argument. It is an interesting oral argument to listen to for both the merits of the case (which are fascinating) as well as lawyering skills.

“Having said that, judges will sometimes try to force “yes or no” answers to complex questions. It can be a trap where the opinion later records some waiver or concession that was not intended by counsel. Many questions are framed in a way that it is simply not accurate to give a one word answer. It can be very frustrating for a lawyer.”

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Being cross-examined by an appealate judge is quite a challenge but I like a little humor to cut the moment. During my last run at the Virginia Supremes I was met with such a challenge by a Justice pressing me for a one word answer as he leaned over the bench. I told the judge the issue wasn’t susceptible to a “yes” or “no” answer but he would not relent. i then asked if he would accept a two word answer and he reluctantly said he might. My grinning reply: “That depends.” The gallery and rest of the panel laughed and the Justce slumped back in his chair. I’m sure I didn’t get his vote but I likely didn’t have it anyway.

Great anecdote Mespo. I’ve always thought that appearing before an appellate court sharpens the cross examination skills of a trial attorney. Your humor is a valuable tool that I see used here as well.

Seeing a problem from all angles was a fundamental point taught to me by an engineer who worked for a Chicago law firm where I worked. He mentored me in analyzing complex subrogation, product liability cases. I took those lessons into also analyzing people I was investigating or interviewing. Seeing things the way they did. I still use those skills in everyday life.

Every good attorney needs to know ventriloquism. When faced with a daunting oral argument before unsympathetic judges, counsel should rise to the podium accompanied by his dummy. Difficult questions must be answered by counsel, but if the judge becomes overbearing or is simply trying to wring a concession from counsel rather than clarifying the argument, the question should be reflected to the dummy. The colloquy would go something like this:

THE COURT: Counsel, in view of Grovelman v. Bowlderdash, how can you possibly make that argument?

THE DUMMY: (turning to counsel) I thought we explained all that in the briefs. Ask him if he read the briefs.

COUNSEL: Now, you keep quiet. I need to answer the judge’s question. It really doesn’t matter if the judge read the briefs or not, I still have to answer his question.

THE DUMMY: (turning to the judge) Your Honor, it’s right there on page 23. Our firm killed a lot of trees printing that brief. The least you could do was read it.

THE COURT: Counsel, you are being impertinent.

COUNSEL: I’m sorry, Your Honor. This is the last time I bring him here, I assure you. (turning to the dummy) I didn’t bring you hear to insult the judges. (turning back to the judge) Now, Your Honor, what was your question?

When your answer is “I want all the federal money I can get but I don’t want to follow the law”, your best argument is babbling. Poster was right. The lawyer was miffed because the judge didn’t bow down to “his god is in my side” position so he was disrespectful. He was worse than a first year law student.

“As head of the litigation section for his office, he has considerable experience.”

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My experience is that guys who head these litigation departments at large law firms have considerable motion practice experience and have some trial experience since most of their cases settle and you have three lawyers doing the work of one or two. The usually have very limited appellate court experience. Here that showed.

It appears that Mr. Kairis was stuck between a rock and a hard place trying to argue a somewhat less than reasonable argument and a judge who wasn’t buying it. As Professor Turley suggested, trying to talk over a judge is not a good idea. I had a similar experience at the trial level when the judge was not going to allow me to argue on behalf of my client. I had to interject that the last time I checked, an oral argument can’t happen if only one side gets to argue. Of course, he let me argue, but glared at me the entire time. Needless to say, I did not win the argument.

Think he was bad here? Listen to the oral argument in Kidd v. Lemke, 12-2614 (argued October 3, 2013), where he demonstrates a disturbing level of ignorance concerning mental retardation/intellectual disabilities. Simply refused to accept that a man with a childhood IQ level of 64 was mentally retarded/disabled (the evidence notwithstanding) – insisting that the man was capable of waiving his right to counsel in a capital murder trial. His questions should trouble advocates and educators alike.

“When the judge speaks, be quite quiet.” My dad was involved in a small claims case as plaintiff. He was suing someone over an unpaid bill, past the statute of limitations. The judge was the last remaining non-lawyer judge in Florida. His first question in the pre-trial conference was, “do you owe the man the money?” The defendant, a retired police officer, declared the issue irrelevant and pushed a copy of the statute of limitations at the judge, who shoved it back. “I asked you, do you owe the man the money?” The defendant repeated his statement that it didn’t matter because it was irrelevant, whereupon the judge informed him that the judge would decide what was relevant. The judge then decided that, since the matter couldn’t be settled at the pretrial conference, he’d schedule a trial. The defendant then announced that a trial wouldn’t matter because he wouldn’t pay, so the judge might as well announce a verdict now. The judge banged his gavel and said, “verdict for the plaintiff.” My experience in small claims is to shut up and let the other party be my best evidence. WHen the defendant received a copy of execution papers which included his beloved custom boat and truck, he tearfully came to my dad’s house and begged to make arrangements to pay, and he paid every dime with interest. The thing is, if he hadn’t made an ass of himself in front of the judge, he could have brought out the statute of limitations as an affirmative defense and won. I had discouraged my dad from even filing because it was out of date, and I am glad he ignored me. In trial court, parties tend to have lawyers who can kick them to get them to shut up, but the lawyers tend not to listen to clients who return the favor, and of course the lawyers have nobody to kick them in appellate court save the judges.

When the Obama Administration argued in Hosanna-Tabor that Cheryl Perich was not a minister and therefore the ministerial exception did not apply, rather than argue that Cheryl Perich was a person of Faith who the Church had selected to minister to the students of Hosanna-Tabor, who had been unjustly let go due to a disability, it was clear that the Obama Administration had changed the nature of the debate in an attempt to redefine Religious Liberty by limiting the number of people who qualify as “ministers”, and are thus entitled to have their Religious Liberty secured and protected. Having failed at redefining Religious Liberty through The Hosanna-Tabor Case, the Obama Administration is attempting, through the contraception mandate that was added after the Affordable Health Care Act was passed, to redefine Religious Liberty through an Administration Agency. Not only does an Administrative Agency not have the authority to determine who is and is not religious enough to have their Right to Religious Liberty secured and protected, but this Administrative Agency has placed an obscene fine of 36,500 per employee for providing Health Insurance that does not include contraception coverage, when the fine for failing to provide Health Insurance is only 2,000 dollars per employee, clearly a violation of the principle of proportionality and thus The Eighth Amendment as well as The First.

Yikes! I started listening to the oral arguments. If this is what we can expect from our Justice System, we are in serious trouble. According to these judges, the only way to condone an act is by supporting that act financially, thus, these judges erroneously argue, as long as The University of Notre Dame is not paying for the contraception in the Insurance Plan they provide to their employees, they are not condoning the use of contraception.

Since it is true that supporting the Faith and Mission of a particular Faith Group does not depend upon one’s ancestry, or whether one is male or female, it is not unjust discrimination to refuse to condone the contraception mentality. Title VII applies to cases where there is unjust discrimination. Not providing contraception in a Health Care Insurance Plan because it violates a tenet of Faith is not unjust discrimination.

Thank goodness, Matthew Kairis was able to keep his cool.
The beginning of wisdom is knowing which questions to ask, because the questions you ask must be relevant to the knowledge you seek. I hope these two Judges will apologize to Matthew Kairis, not only for being impolite, but because they failed to do their due diligence.

The reason why you have no precedence for an accommodation for religious liberty being viewed as a denial of free exercise, is because it is unconstitutional for the Government to attempt to shape the Faith and mission of a particular Faith Group. (see The First Amendment, Hosanna-Tabor)

[…] so skewed toward the judges and when the attorney is ethically bound to advocate for the client? A recent incident with Judge Richard Posner is just one example of the inherent challenges of oral argument. Advocates may err on the side of […]